The interrogation techniques used by U.S. personnel on detainees at the naval base at Guantanamo Bay, Cuba remain shrouded in mystery. While U.S. policy is that the detainees be treated “humanely,” the Department of Defense has never revealed publicly how the detainees have been interrogated. Journalists who have visited Guantanamo have not been permitted to talk to detainees, and less than three dozen of the 147 detainees who have been released thus far—none of them “high value” detainees—have commented publicly on their treatment.
Chronology of Department of Defense Memoranda1/19/02: Defense Secretary Donald Rumsfeld sent a memorandum to Richard B. Myers, Chairman of the Joint Chiefs of Staff, stating that “Al-Qaeda and Taliban individuals under the control of the Department of Defense are not entitled to prisoner of war status for purposes of the Geneva Convention of 1949.” Nevertheless, he stated that all detainees should be treated humanely and, “to the extent appropriate with military necessity, in a manner consistent with the principles of the Geneva Conventions of 1949.”
2/7/02: President George Bush reaffirmed Secretary Rumsfeld’s order in a memorandum in which he also said that the values of the nation “call for us to treat detainees humanely, including those who are not legally entitled to such treatment.” President Bush determined that the Geneva Conventions did not apply at all to the conflict with Al-Qaeda and that, although they applied to the conflict with the Taliban, none of the Taliban would be entitled to prisoner of war status. The order does not mention the Geneva Conventions’ requirements regarding the treatment of detained persons who do not have POW status (“protected persons”), nor does it mention any international human rights treaties governing treatment of detainees, such as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment.
10/11/02: Lieutenant Colonel James Phifer of the US Army, sent a joint task force memorandum to Major General Michael Dunlavey, Commander at Guantanamo, seeking approval for harsher interrogation techniques because “[t]he current guidelines for interrogation procedures at GTMO limit the ability of interrogators to counter advanced resistance.” (The current guidelines are not identified.) Phifer proposed a set of techniques in three escalating categories. The mildest techniques, Category I, could be used by interrogators at will and included yelling and mild forms of deception.
Category II techniques required approval by an “interrogator group director.” They included: use of stress positions for up to four hours; use of falsified documents; isolation of a detainee for up to thirty days; sensory deprivation and hooding; twenty-hour interrogations; removal of comfort and religious items; replacing hot food with cold military rations; removal of clothing; forced grooming, including the shaving of beards; and playing on detainees’ phobias, such as a fear of dogs, to induce stress.
Phifer proposed that Category III techniques, the most harsh, would be reserved for a “very small percentage of the most uncooperative detainees” and that they should require permission of the commanding general before being used. These techniques included: convincing the detainee that death or severely painful consequences were imminent for the detainee or a family member; exposing detainees to cold weather or water; using a wet towel and dripping water to “induce the misperception of suffocation”; and using mild, non-injurious physical contact like grabbing or poking.
10/11/02: Lieutenant Colonel Diane E. Beaver, Staff Judge Advocate at the US Army, reviewed Phifer’s requested interrogation techniques for legality. In a memorandum to Major General Dunlavey, Commander at Guantanamo, Beaver concluded the techniques were legal, although she made many important qualifications. She also recommended further legal review.
10/11/02: In response to Phifer’s and Beaver’s memoranda and recommendations, Major General Michael E. Dunlavey, Commander at Guantanamo, sent a memorandum to General James T. Hill, Commander of the United States Southern Command, in which he stated that the proposed interrogation techniques “do not violate U.S. or international laws.” He requested that all interrogation techniques be approved.
10/25/02: After reviewing the Phifer, Beaver, and Dunlavey memoranda, General James T. Hill, Commander of the United States Southern Command, sent a memorandum to Richard B. Myers, Chairman of the Joint Chiefs of Staff, in which he concluded that the proposed Category I and II techniques were “legal and humane.” He questioned, however, whether the Category III techniques were legal. He recommended additional legal advice by Department of Defense and Department of Justice lawyers.
11/27/02: Referring to Hill’s memorandum, William J. Haynes, General Counsel for the Department of Defense, sent Secretary of Defense Donald Rumsfeld an action memorandum to approve for use, at General Hill’s discretion, all Category I and II techniques, and the “mild, non-injurious contact” technique from Category III. Haynes wrote that other Category III techniques “may be legally available … [but] as a matter of policy, a blanket approval … is not warranted at this time.”
12/2/02: Secretary Rumsfeld signed Department of Defense General Counsel Haynes’ action memorandum, thereby approving the use of interrogation techniques recommended by Haynes. Secretary Rumsfeld’s order left open the possibility of the use of Category III techniques for which blanket approval was not provided if appropriate specific authorization were provided.
1/15/03: Secretary Rumsfeld rescinded the December 2, 2002 order with regard to the discretionary use of Category II techniques and the specific Category III technique of mild, non-injurious contact, but he stated that he could approve these techniques in individual cases. In his memorandum, he also ordered Department of Defense General Counsel Haynes to establish a Working Group that would address the legal, policy, and operational issues around detainee interrogation techniques and that would make recommendations, including recommendations, regarding specific interrogation techniques.
4/4/03: The Working Group established by General Counsel Haynes pursuant to Secretary Rumsfeld’s order issued its report. The seventy-one page report recommended the use of thirty-five specific interrogation techniques, including techniques that had not previously been authorized. The Working Group did not place the interrogation techniques in three categories and omitted, without explanation, previously recommended Category III techniques. The Working Group recommended that the first 26 techniques it proposed be approved for use with any unlawful combatant held outside the United States. The remaining nine “exceptional” techniques, however, should be reserved for cases where an individual detainee was suspected of possessing “critical intelligence.” The Working Group also recommended various safeguards to accompany the use of these exceptional techniques.
4/16/03: In response to the Working Group’s report, Secretary Rumsfeld authorized use of twenty-four techniques, but his memorandum states that if officials desire to use any additional interrogation techniques, they should provide him with a written request. The order does not explain why he rejected eleven of the Working Group techniques. The order sets forth general interrogation safeguards.